R. v. J.S.H., (1992) 114 N.S.R.(2d) 48 (ProvCt)

CourtProvincial Court of Nova Scotia (Canada)
Case DateMay 01, 1992
JurisdictionNova Scotia
Citations(1992), 114 N.S.R.(2d) 48 (ProvCt)

R. v. J.S.H. (1992), 114 N.S.R.(2d) 48 (ProvCt);

  313 A.P.R. 48

MLB headnote and full text

Her Majesty the Queen v. J.S.H.

(#254282)

Indexed As: R. v. J.S.H.

Nova Scotia Provincial Court

Crowell, J.C.C.

May 1, 1992.

Summary:

A father was charged with having anal intercourse with his eight year old son, contrary to s. 159 of the Criminal Code.

The Nova Scotia Provincial Court found the father not guilty, but found him guilty of committing the included offence of sexual assault, contrary to s. 271 of the Code.

Criminal Law - Topic 665

Sexual offences, public morals and dis­orderly conduct - Sexual offences - Rape or sexual assault - General - [See both Criminal Law - Topic 704 ].

Criminal Law - Topic 704

Sexual offences, public morals and dis­orderly conduct - Sexual offences - Anal intercourse - An accused was charged with having anal intercourse with his eight year old son - The son hesitantly pres­ented evidence of which much was incomprehensive and of little probative value - The son indicated that a third party had anal intercourse with his five year old brother - Medical evidence was con­sistent with anal penetration of the son - The father denied the charge - The Nova Scotia Provincial Court found the accused not guilty - The court convicted the accused on the included offence of sexual assault.

Criminal Law - Topic 704

Sexual offences, public morals and dis­orderly conduct - Sexual offences - Anal intercourse - The Nova Scotia Provincial Court held "... that the offences of both sexual assault and of common assault are included offences of the charge of s. 159 [of the Criminal Code], anal intercourse" - See paragraphs 26 to 31.

Criminal Law - Topic 4450

Procedure - Verdicts - Included offences - General principles - The Nova Scotia Provincial Court stated that "[t]he doctrine of the 'lesser included offence' has been determined to be 'lesser' in respect of its requirements, not necessarily in respect of its maximum punishment. The doctrine specifies that if an offence has ingredients, A, B and C and another offence has only ingredients A and B, the accused can be acquitted of the first offence but convicted of the second. In other words, one can, by deleting ingredient C leave subsisting all the ingredients of the lesser offence" - See paragraph 26.

Criminal Law - Topic 4470.7

Procedure - Verdicts - Included offences - Inclusion in anal intercourse - [See second Criminal Law - Topic 704 ].

Criminal Law - Topic 5463

Evidence and witnesses - Evidence of children - Corroboration - An accused was charged with having anal intercourse with his eight year old son - The son hesi­tantly presented evidence which was most­ly incomprehensive and of little probative value - The evidence of the younger brother had little value - The court held a voir dire to determine if the evi­dence of the son could be intro­duced through his doctor - The doctor had, after examining the son, made notes on what the son had told him - The Nova Scotia Prov­incial Court admitted the state­ments to the doctor as they were both reasonably necessary and reliable - See paragraphs 1 to 10.

Cases Noticed:

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, consd. [para. 4].

Myers v. Director of Public Prosecution (1965), A.C. 1001, refd to. [para. 5].

R. v. G.B. et al. (No. 2), (1990), 111 N.R. 31; 86 Sask.R. 111, refd to. [para. 8].

R. v. Springfield (1969), 53 Cr. App. Rep. 608, consd. [para. 15].

R. v. Nelson, 8 W.C.B.(2d) 385, (Ont. H.C.J.), refd to. [para. 20].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 144 [para. 18]; sect. 149 [para. 16]; sect. 155, sect. 156, sect. 157 [para. 16].

Criminal Code, R.S.C. 1985, c. C-46, sect. 159 [paras. 1, 29, 31]; sect. 265(1) [paras. 28, 30]; sect. 265(2) [para. 28]; sect. 271 [para. 29, 34]; sect. 271(1) [para. 28].

Counsel:

William Ferguson, Q.C., for the Crown;

Jamie Armour, for the defense.

This case was heard at Windsor, Nova Scotia, before Crowell, J., of the Nova Scotia Provincial Court, who delivered the following judgment dated May 1, 1992.

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